Gersten v Refugee Review Tribunal & Anor M64/2000 [2001] HCATrans 35 (16 February 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M64 of 2000

B e t w e e n -

JOSEPH MORRIS GERSTEN

Applicant

and

REFUGEE REVIEW TRIBUNAL (constituted by Murray Gerkens)

First Respondent

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Application for special leave to appeal

GUMMOW J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 FEBRUARY 2001, AT 3.25 PM

Copyright in the High Court of Australia

MR B.M. ZIPSER: I appear for the applicant. (instructed by H.S. Wise Gershov & Co)

MR A.L. CAVANOUGH, QC: If the Court pleases, I appear on behalf of the second-named respondent. (instructed by the Australian Government Solicitor)

GUMMOW J: Now, this an extension of time matter, is it not?

MR ZIPSER: It is both an application for an extension of time and also at the same time, if an extension of time is granted, an application for special leave.

GUMMOW J: Yes. Now, Mr Zipser, there is another problem, is there not? Why should we continue, if there has been one, any order that disguises the identity of your client?

MR ZIPSER: I note that the respondent has made an application the order no longer continue. I have no position or instructions on that matter.

GUMMOW J: All right. We will direct that the applicant henceforward be shown as Joseph Morris Gersten and any previous order to contrary effect is discharged. I should also indicate that I hold a certificate from the Deputy Registrar of the Australian Government Solicitor, who is the solicitor for the first respondent, will submit to any order of the Court save as to costs.

Yes, Mr Zipser.

MR ZIPSER: The question which the - - -

GUMMOW J: I should also have indicated that the identity of the respondent for whom Mr Cavanough should be amended in the Court records so that it appears as Minister for Immigration and Multicultural Affairs. With all that of the way, proceed.

MR ZIPSER: The question which the applicant seeks to agitate on the special leave application is whether there is a principle relevant to a court's - - -

GUMMOW J: Before you get to that, perhaps you could explain to us why your client should have the extension.

MR ZIPSER: The relevant principles for whether an extension should be granted are set out in the decisions of Justice McHugh in Gallo v Dawson and also the decision of Chief Justice Mason in the Halliday and High Performance Case. It is submitted that there are three issues relevant to the Court's consideration of whether an extension of time should be granted. The first is the applicant's explanation for not filing an application within time; the second is the prospects of the applicant succeeding on the appeal and the third is any injustice to the respondent.

In relation to the first of those issues, the information relevant to the Court's assessment of why the applicant did not file an application within time is set out in two of his affidavits dated 17 August 2000.

GUMMOW J: Your client is a member of the New South Wales Bar, is he not?

MR ZIPSER: Yes, your Honour. He has deposed as to his belief and his beliefs between the handing down of the decision of the Full Court of the Federal Court in October 1997 and the filing of the application in the present matter and it is for this Court to assess the reasonableness of the beliefs that he held.

HAYNE J: Does it come to more than this, "I, a lawyer, had an order for costs against me but I believed it wouldn't be enforced"? Is that the nub of what the applicant says?

MR ZIPSER: That is one of his beliefs. His other belief was that shortly after the decision at first instance of Justice Sundberg he had also commenced proceedings in the High Court, which is not limited in its jurisdiction by the Migration Act, and a belief that he held, as he deposes to in his affidavit, was, firstly, that while those proceedings were continuing the respondent was not entitled to enforce the costs order and his view also was that if he was successful in those proceedings then he would be able to set aside the costs order of Justice Sundberg in the Full Court of the Federal Court. Those are the elements of the belief that he held between October 1997 and the filing of his application.

GUMMOW J: All right. Well, a second matter, I suppose, on the extension is the substance in the actual application itself. In other words, is there anything worth extending time for?

MR ZIPSER: The issue that the applicant seeks to agitate is as follows: that there is a principle relevant to the court's exercise of discretion in relation to costs following discontinuance of proceedings where the discontinuance is caused by an event not the fault of, and also out of the control of the applicant.

GUMMOW J: Yes, but at the bottom the question is whether Justice Sundberg misapplied the principles and discretions in the passage at page 17 of the application book, is it not?

MR ZIPSER: Yes, your Honour. In my submission, if one applies the principle that the applicant seeks to agitate, then a question which Justice Sundberg should have considered is whether it was reasonable for the applicant to commence proceedings when he did in light of the law as it was at that time. I would refer the Court to three decisions in - - -

GUMMOW J: But why should not costs follow the event?

HAYNE J: Even if the proceedings were perfectly reasonably, whatever that may mean in this context, reasonably instituted, once discontinued, why should the party vexed with the proceedings not have his or her costs?

MR ZIPSER: That is a matter for the trial judge to consider and decide and it is within the trial judge's power to order that costs follow the event. However, in the course of making that decision the judge must apply the correct principles of law. Also if the judge fails to take into account a material consideration, then following the principles set out in the Full Federal Court's decision in Cummings v Lewis, the exercise of discretion is open to appellate review.

GUMMOW J: Yes.

MR ZIPSER: That was my response to Justice Hayne's question.

HAYNE J: Yes.

MR ZIPSER: There are three - firstly, if one reads the reasons of Justice Sundberg at page 17, then there is no indication that he has considered whether the applicant behaved reasonably in commencing the proceedings in light of the law at that time. Secondly, in support of the applicant's proposition that such a principle exists, I rely on, firstly, the decision of Justice McHugh in Re The Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin.

GUMMOW J: I think, you know, in these highly practical matters, Mr Zipser, precedent law only goes so far really. You really have to get into the nitty-gritty of the actual case. You can just get so much out of previously decided cases in procedural matters. If you are in a practice court, which at the moment I am afraid you seem to be, you have to get to the heart of it in a practical way.

MR ZIPSER: The heart of the matter then is that a relevant consideration in matters of this type is whether the applicant, as for any applicant in a similar position, behaved reasonably. Justice Sundberg failed to consider that matter. That, it is submitted, gives rise to a matter which can be considered as an error by an appellate court.

HAYNE J: Let it be assumed that the institution of the proceedings were classified as reasonable. Let it be assumed further that without leave, as the applicant would be entitled, before directions or if the action were proceeding on pleadings before close of pleadings the applicant filed notice of discontinuance. The rules would be engaged and the applicant would automatically have to pay the costs, would he not? If that were so, why should he not have to pay the costs when discontinuance occurs by leave?

MR ZIPSER: In a matter where the applicant's position changes as a result of events which are out of the applicant's control and not the fault of the applicant, for example, change in law or change in legislation, then it is submitted that this principle applies. It becomes a matter for the judge's discretion but it is a matter which the trial judge or the judge making orders as to costs should consider.

HAYNE J: Now, all of this was, I take it, put to the Full Court? We do not have the benefit of the Full Court's reason, but are we to proceed on the basis that these arguments were advanced to the Full Court and rejected by them?

MR ZIPSER: I am unable to provide instructions on what was advanced to the Full Court.

HAYNE J: In those circumstances, why should this Court get into a question of costs in circumstances as, if you will forgive me saying this, unpromising as these appear to be?

MR ZIPSER: I accept that that is an additional hurdle for the applicant to overcome in making this application.

GUMMOW J: Yes, Mr Zipser.

MR ZIPSER: I have addressed the merits issue. I then have no further submissions.

GUMMOW J: Yes, thank you, Mr Zipser. The Court need not trouble you, Mr Cavanough.

The applicant requires an extension of time. The material relied upon is an insufficient explanation for his delay. Further, an appeal would have no reasonable prospects of success. Accordingly, an order for an extension of time is refused and refused with costs.

MR CAVANOUGH: If your Honours please, I make an application as foreshadowed in the summary of argument for costs on an indemnity basis in this matter.

GUMMOW J: Yes. We have read what you said, Mr Cavanough, but we were not engaged by it sufficiently. So refused with costs.

MR CAVANOUGH: If the Court pleases. That is to say my learned friend's application is refused with costs?

GUMMOW J: Yes.

HAYNE J: That would be heaping coals at the fire on you, Mr Cavanough.

AT 3.39 PM THE MATTER WAS CONCLUDED